New York's unions brace for fallout from Supreme Court's Janus decision: Will members pay?

Nyack HIgh School teachers and staff protest at the school against Gov. Andrew Cuomo's schools budget and other education reforms March 2, 2015. The Nyack NYSUT held the protest in conjunction with others around the state.(Photo: , Peter Carr/The Journal News)Buy Photo

Since the widely expected decision in Janus v. AFSCME came down June 27, unions and groups that oppose them have started grassroots campaigns in the form of emails to public employees, mailers to their addresses and even door-knocking at their homes. There is much at stake in one of the nation's strongest union states.

Conservative, anti-union organizations jumped into action within hours of the decision, zipping emails to teachers and others with instructions on how to opt out of union membership. Meanwhile, labor backers and leaders, who have spent years preparing for a game-changing court decision, have stepped up efforts to re-energize their members and sell the benefits of union membership.

The future power of unions in New York could come down to theirability to win over two groups: new public employees and disenfranchised or disinterested members vacillating on whether they want to join and pay dues.

Years of prep work

The Janus decision overruled a 1977 Supreme Court decision that it was constitutional to force non-union members to pay union dues toward collective bargaining, but not political activities. New York is one of 22 states that have required non-union members to pay dues.

In recent years, though, the high court's conservative turn had made clear that a change was coming.

“We knew after the Friedrichs case that it was a matter of time,” said Marc Laffer, staff director of NYSUT's regional office in Tarrytown.

That 2016 case, brought by Rebecca Friedrichs, a teacher in California, had appeared poised to overthrow the 1977 precedent. But Justice Antonin Scalia died shortly after oral arguments, leaving the court deadlocked.

“At that point we set up a very aggressive plan on how to deal with the potential impact and loss of agency fees,” Laffer said.

NYSUT collected about $140 million in membership dues in 2017, according to tax filings, a revenue stream for the 600,000-member nonprofit that increased 13 percent since 2014. Membership dues made up 85 percent of NYSUT's revenue last year.

NYSUT collected about $140 million in membership dues in 2017, according to tax filings.(Photo: Dongseon Kim/Getty Images/iStockphoto)

The annual dues are based on salary, topping out at $613 for state and national educator unions. On top of that, local chapters also charge their own membership fees.

Every member who opts out and every new employee who chooses not to sign up will mean lost revenue for NYSUT and other unions.

Laffer said NYSUT in recent years began cutting back on staff and services and “really shifted some things around with the anticipation of the Janus decision.”

Meanwhile, New York is now a target of conservative nonprofits that promoted laws in so-called "right to work" states that make it illegal to force non-union members to pay dues. Such laws were passed in 28 states, including in Michigan and Oklahoma, where the Mackinac Center and Americans for Fair Treatment are, respectively, headquartered.

Both groups have received funding in recent years from conservative donors, including organizations linked to the Koch Brothers and Betsy DeVos, U.S. Secretary of Education in the Trump administration.

Mackinac launched an outreach campaign after the Janus oral arguments in February to educate public employees about their rights, according to Lindsay Killen, vice president for strategic outreach and communications at the center. The effort is expected to cost $10 million before the end of the year.

“The goal is that every public employee across the country will know and understand what their rights are,” Killen said.

Americans for Fair Treatment launched its “New Choice NY” project this month, promising to provide public employees with "unbiased and accurate information" about exercising their new choice on union membership and dues payment.

Re-enrolling, or not

In January, NYSUT started re-enrolling members into the union, an effort that got 100 percent return in Michael Lillis’ district.

Lillis, a physics teacher and union president in the Lakeland school district, who has been critical of NYSUT leadership in the past, said the union’s importance hits home when looking at peers in Oklahoma, Kentucky, Arizona and West Virginia. Earlier this year, teachers in those states went on strike to pressure their state governments to increase teacher salaries and overall education funding.

Secondary teachers in Oklahoma were paid the lowest average salary in the country in 2017 at $41,800, according to the U.S. Bureau of Labor Statistics. By comparison, those teachers in New York were paid the second-highest average salary, $83,360.

“We have strong unions at the local and state level and people understand that. They understand what’s happening with our colleagues in Oklahoma” and other places, he said. “They don’t want that to happen here … I believe that the membership is going to prevent that from happening.”

About 31,000 state workers have opted out of their unions already, according to state Comptroller Thomas DiNapoli’s office.(Photo: ilkercelik/Getty Images/iStockphoto)

Laffer, of NYSUT's regional office, said union representatives from local chapters will be spending the summer making home visits to those who haven’t re-committed.

Ken Girardin, policy analyst for the Empire Center, a conservative think tank, charged that state lawmakers, preparing for the Janus decision, enabled unions to make it more difficult for members to opt out.

Changes made in the spring to the state's Taylor Law, which defines union rights, allow unions to set the terms of member withdrawal.

NYSUT members must now notify their local union during August if they want to stop paying dues. If that window is missed, they can end their union membership, but the fees will still be deducted from paychecks until the following August.

Girardin called this an “obstacle” that could face litigation in the future.

"If someone withdraws that (union) consent in October and their union says their opt out window is in August, you’re violating their First Amendment rights by forcing them to pay for another 10 months … what the state has done here is potentially expose them to legal fees,” Girardin said. “The state has thrown local governments and school districts into the middle of disputes here and taxpayers will be the losers.”

Laffer said that teacher unions need a time frame for members to opt out to ensure a stable membership during the school year.

"I don’t think it’s a surprise that there may be some that look to challenge that," Laffer said. "But ultimately the (Supreme Court) decision allows for it and the change in the Taylor Law allows for it."

Foresight in Albany

Gov. Andrew Cuomo and the Legislature clearly anticipated the Janus decision. The state budget for 2018-19 included amendments to strengthen the Taylor Law, and to help unions maintain membership.

One change ensures that employers have to provide union leaders with contact information for new hires and those who were promoted or transferred, putting them in a different union.

This information — which includes name, address, job title, employing agency, and work location — has to be provided within 30 days. Then union representatives have another 30 days to reach out and meet with individuals to discuss membership.

Another amendment stipulates that unions can decide whether or not to represent non-members in disciplinary situations, evaluations, and other circumstances.

When asked whether the Janus case would allow individuals who opt out of union membership to negotiate their own contract with school districts or government agencies, several experts said no. It remains to be seen whether non-union members will challenge parts of the Taylor Law in court, now that the Janus decision has reshaped precedent on union membership.

Jay Worona, longtime general counsel for the New York State School Boards Association, said state law still protects the bargaining role of unions.

“The Taylor Law in New York still requires us to provide the union with the ability to be the exclusive bargaining organization,” Worona said. “Those individuals are still part of the unit. This decision doesn’t change that at all.”